The representation of victims in public prosecution cases refers to the behavior of lawyers or other citizens who accept the entrustment of victims in public prosecution cases and their legal representatives or close relatives to participate in litigation as victims' agents.
Article 44 of China's Criminal Procedure Law stipulates that' the victims of public prosecution cases and their legal representatives or close relatives, and the parties involved in incidental civil actions and their legal representatives have the right to entrust agents ad litem from the date when the case is transferred for examination and prosecution. The private prosecutor and his legal representative in a case of private prosecution, and the parties to an incidental civil action and their legal representatives have the right to entrust an agent ad litem at any time. Thus, the representation of the victims in public prosecution cases has the following characteristics: (1) The victims in public prosecution cases entrust agents, which can be the victims themselves, their close relatives or legal representatives, and others have no right to entrust agents for the victims. (2) The legal representative of the victim or the agent entrusted by a close relative is the victim's agent ad litem, not the victim's legal representative or the agent of a close relative. (3) The victim entrusts an agent ad litem from the date when the case is transferred for examination and prosecution, that is to say, the victim cannot entrust an agent during the investigation stage of the public prosecution case. After the case is transferred for prosecution, an agent may be entrusted at any time, including the first instance and the second instance.
In criminal proceedings, the victim's agent ad litem can only exercise all or part of the litigation rights granted to the victim by law. The victim's rights in criminal proceedings mainly include: (1) At the stage of prosecution, he has the right to reflect his opinions on the case to the prosecutor. If the victim refuses to accept the decision to sue and repent, he has the right to appeal to the people's procuratorate at the next higher level or bring a lawsuit directly to the people's court. (2) After the public prosecutor reads out the indictment in court, the victim can state the criminal facts alleged in the indictment, and with the permission of the presiding judge, he can ask questions to the defendant, witness and expert witness. You can express your opinions on the physical evidence, witness testimony, expert conclusion, inquest, inspection record and other evidence presented or read in court. (3) The victim has the right to apply for notifying new witnesses to appear in court, to obtain new material evidence, and to apply for re-appraisal or inquest. (4) Have the right to participate in court debates. (5) If the victim refuses to accept the judgment of first instance of the local people's courts at all levels, he may request the people's procuratorate to lodge a protest according to law. (6) If the victim suffers material losses due to the defendant's criminal behavior, he may bring an incidental civil action according to law. These litigation rights of victims are also the agency scope of victims' agents. The specific agency scope of each case shall be subject to the provisions in the principal-agent agreement, which can be all or part of the agency.
It is difficult for victims to fully exercise their litigation rights because of lack of legal knowledge or disability caused by criminal acts. The establishment of litigation agency system can better safeguard the legitimate rights and interests of victims and others. After accepting the entrustment of the victim, the lawyer should first understand the case and find out all kinds of favorable and unfavorable situations for the victim. If the facts are unclear, the attorney may ask the judicial personnel or request a supplementary investigation. Write a proxy statement after finding out the case. Proxy words should be expounded from the aspects of ascertaining criminal facts, evidence, characterization, and all kinds of injuries and losses directly caused by criminal acts to the victims. The narrative should be clear and the text should be concise. When the court session is held, it is necessary to appear in court instead of the victim, read the statement of agency, exercise the right of entrusted litigation on behalf of the victim and protect the legitimate rights and interests of the victim.
(2) Agent for private prosecution cases and agent for counterclaim cases.
Agency for private prosecution cases means that in criminal cases of private prosecution, lawyers or other citizens accept the entrustment of private prosecutors or their legal representatives to participate in the proceedings as agents. Article 40 of China's Criminal Procedure Law stipulates that the private prosecutor and his legal representative in a private prosecution case have the right to entrust an agent ad litem at any time. This provision shows that in a case of private prosecution, it is the private prosecutor or his legal representative who has the right to entrust an agent ad litem. Other people, including the close relatives of the private prosecutor, cannot entrust an agent for the private prosecutor, which is different from the agent of the victim in a public prosecution case. According to the relevant provisions of the laws of China, lawyers; The person recommended by the unit where the private prosecutor works; Guardians, relatives and friends of private prosecutors can all act as agents, but those who are being punished by criminal punishment or deprived of or restricted personal freedom according to law cannot act as agents. Because they are deprived of their personal freedom, they cannot exercise their right to represent them in litigation.
The litigation status of the private prosecutor's agent in a private prosecution case has its own characteristics, that is, the private prosecutor is the party to the private prosecution case and exercises the accusation function in the lawsuit. But when the defendant filed a counterclaim against him, the private prosecutor became the defendant again and enjoyed the right of defense. At the same time, the agent entrusted by the private prosecutor can also be entrusted by the defendant (the original private prosecutor) as his defender, that is, from exercising the accusation function to exercising the defense function. Actually, I'm doing two jobs at the same time. In the same private prosecution case, the defendant filed a counterclaim. Due to the change of its litigation status, the original entrusted defender can also become the agent of the private prosecutor (the original defendant), that is, from exercising the defense function to exercising the accusation function, and also has two jobs.
When a lawyer acts as an agent of a private prosecutor, he shall do the following work:
1. Close the case. When a private prosecutor entrusts an agent in a criminal private prosecution case, it is generally before the court accepts it. In this case, whether to accept the entrustment of the private prosecutor, we should first listen carefully to the client's statement of the case, check the relevant evidence, analyze whether the defendant's behavior constitutes a crime, and then decide whether to accept the agency according to different situations, or inform the competent department to prosecute or not.
2. Go through the entrustment formalities. Those who accept the agency shall go through the entrustment formalities. First of all, we must sign an entrustment contract. The entrustment contract shall indicate the entrustment contract of criminal private prosecution. The entrustment contract must specify the agency authority, so as not to be unable to act as an agent because of unclear authority in litigation. This contract is made in quadruplicate, one for the court accepting the case, one for the client, one for the law firm and one for the lawyer.
3. Write a letter of complaint. After accepting the entrustment, the undertaking lawyer shall write a private prosecution on behalf of the private prosecutor. The contents of private prosecution include the following:
(1) title. State the names, gender, age, nationality, place of origin, occupation and address of the private prosecutor and the defendant.
(2) request. If there is an incidental civil action, it shall be written separately from the criminal action.
(3) facts and reasons. Grasp the main issues, make clear statements, make clear opinions, and have sufficient evidence and reasons.
(4) conclusion. Summarize the defendant's criminal facts, clarify the legal basis, and reiterate the litigation request.
(5) Precautions. Indicate the evidence, witness list and other reasons that need to be indicated.
4. investigation. China's criminal procedure law stipulates that lawyers have the right to collect and consult materials related to this case; Have the right to go to the people's court to consult the relevant files and materials transferred to the people's court by the people's procuratorate after the people's procuratorate does not prosecute but the victim does, so as to understand the case.
5. Exchange opinions with the parties before the trial.
(1) Whether the original delegation authority has changed.
(2) If it is found that the prosecution facts are inconsistent with the evidence through marking and investigation, and it is necessary to correct the prosecution facts, it shall be corrected through consultation with the client. If the client does not agree to make corrections, the lawyer in charge shall explain the situation according to law.
(3) If the claim is found inappropriate through marking and investigation, it is necessary to negotiate with the customer to correct the claim.
(4) If it is found that the private prosecutor has committed perjury and fraud through marking and investigation, the client shall be informed of the legal responsibilities he should bear and advised to make corrections. If the principal insists on his own opinion, the agency relationship can be dissolved through consultation.
(5) through marking and investigation, it is found that there are significant discrepancies between the facts of the original prosecution, which does not constitute a crime. We should advise the parties to withdraw the lawsuit and find another way to solve the problem correctly.
(6) On the basis of marking and investigation, list the problem outline and inform the client of the problems that should be paid attention to.
6. Determine the opinions of the agent and write the words of the agent. Generally speaking, the following aspects should be considered in determining the agency's opinion: (1) the factual aspect of maintaining the prosecution; (2) maintaining the quality of prosecution; (3) Protecting other lawful rights and interests of private prosecutors.
Write a good proxy word. The proxy statement is a comprehensive exposition of the indictment.
7. Appear in court to support the charges. Appearing in court to support charges is the key stage for lawyers to represent private prosecution cases, and it is necessary to do a good job in all stages of the court. In the preparation stage of the court, the agent should pay attention to whether the trial procedure is legal. In the stage of court investigation, the judge should read the private prosecution on his behalf, pay attention to the questions of the judge and the defender, answer the questions of the judge about the evidence, ask the defendant and the witness purposefully, and pay attention to the cross-examination of the evidence in court. At the stage of court debate, a statement of private prosecution should be issued to defend the defendant's defense. In the court mediation stage, the attorney should actively cooperate with the court to promote mediation according to the specific circumstances of the case and the attitude of the defendant, on the premise of protecting the legitimate rights and interests of the client and resolutely acting according to law. In the sentencing stage, we should listen carefully to the contents of the referee. After the verdict is pronounced, it is necessary to solicit the opinions of the private prosecutor on the verdict, do different work according to different situations, or advise against the appeal or explain the reasons for the appeal.
In a case of criminal private prosecution, the defendant has the right to file a counterclaim according to law. The parties to a counterclaim may also entrust an agent.
Generally speaking, the agent in a counterclaim case has a dual identity, both as the defendant's defender and as the litigation agent in counterclaim. Therefore, it is necessary to go through the formalities of double entrustment and clarify the agency authority.
When a lawyer accepts a counterclaim, he must first examine whether the counterclaim meets the counterclaim conditions. Those who do not meet the counterclaim conditions shall be persuaded not to file a counterclaim or withdraw the lawsuit. For a counterclaim case that meets the counterclaim conditions, the attorney should write a counterclaim on behalf of him. Counterclaim is generally divided into two parts. The first part is the rebuttal of private prosecution, and the second part is to demonstrate the facts and reasons of counterclaim and put forward the basis of counterclaim. During the trial, the attorney should not only protect the legitimate rights and interests of the client, but also promote the two sides to solve the problem through mediation according to the facts and laws. If the counterclaim cannot be established after investigation, the attorney shall explain the legal provisions to the counterclaim and persuade it to withdraw the counterclaim.
(3) Agency of the parties involved in incidental civil litigation
Incidental civil litigation agency refers to the activities entrusted by the parties to incidental civil litigation and their legal representatives, and is an important part of litigation agency in criminal private prosecution cases and public prosecution cases. Article 40 of the Criminal Procedure Law stipulates that the parties to a public prosecution case and their legal representatives shall have the right to entrust agents ad litem from the date when the case is transferred for examination and prosecution. The parties involved in the incidental civil action in a case of private prosecution and their legal representatives have the right to entrust an agent ad litem at any time. The people's procuratorate shall, within 3 days from the date of receiving the case materials transferred for examination and prosecution, inform the parties involved in the incidental civil action and their legal representatives that they have the right to entrust agents ad litem. The people's court shall, within 3 days from the date of accepting a case of private prosecution, inform the parties involved in an incidental civil action and their legal representatives that they have the right to entrust an agent ad litem.
The lawyer's agent in incidental civil litigation is essentially a civil litigation agent. However, the agency of incidental civil action is different from the agency of pure civil action. The agent of the former may have several roles, such as being both the defender of the defendant and the agent of counterclaim. Therefore, the competent lawyer must know the authority of various agents and the status of various agents in the lawsuit to avoid confusion and unclear agents.
Lawyers representing incidental civil actions should pay attention to the following issues:
1. When representing an incidental civil action, we should pay attention to the principle of equality between the original defendant and the defendant, and equally protect the legitimate civil rights and interests of both parties. Just because the defendant may be a criminal, there is no need to protect his legitimate civil rights and interests.
2. Lawyers acting as agents of incidental civil plaintiffs should pay attention to the criminal and civil liabilities of the defendants.
3. Lawyers should not only actively protect the legitimate rights and interests of clients, but also proceed from reality to make compensation reasonable.
(4) Agency in appeal cases
Article 203 of China's Criminal Procedure Law stipulates that the parties, their legal representatives and close relatives may appeal to the people's court or the people's procuratorate against the legally effective judgment or ruling. Lawyers, as legal workers, have the right to accept the entrustment of clients and appeal on their behalf. Lawyers can better protect the legitimate rights and interests of the parties and help the judicial organs to correct wrong judgments or rulings in time. Through the legal publicity of lawyers, unreasonable lawsuits can also be reduced.
The situation of the complaint is more complicated, so lawyers should be cautious when representing. First of all, we must find out the facts of the case and know whether the complainant's complaint is reasonable. Unreasonable complaints should not be represented. After accepting the entrustment, the lawyer shall carefully study the contents of the judgment and ruling, find out whether there are problems in ascertaining the facts, applying the law and determining the nature, and then ask the complainant about the situation and the reasons for the appeal. If necessary, the relevant personnel can also be investigated. Write a complaint on the basis of a comprehensive understanding of the situation and send it to the relevant judicial organs. After the relevant judicial organs make a decision on the appeal, the agency work will end whether they decide to retry or reject the appeal.